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Employment Law Bulletin August 2018


News round up

Places are filling up fast for our popular HR Breakfast club event on Thursday 13 September 2018. In this interactive workshop, we will guide you through case study materials concerning a troublesome, under-performing employee who, when challenged, raises a grievance about his line manager. If you would like to register, please email Laura Courbet on laura.courbet@clarionsolicitors.com

We also run a series of exclusive HR dinners for senior HR professionals. These dinners bring together a small, exclusive group of HR professionals to share one issue (whether it’s operational or strategic) and draw on the knowledge and experience in the group to resolve it, on a complementary, strictly confidential basis. Unfortunately, we have no spaces left at our September dinner, but please get in touch if you are interested in attending the dinners and we will let you know when the next one is in the diary.

In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.

In the meantime, here is our usual round up of key cases and legal changes over the last few weeks.

Age discrimination still rife

This month, the Women and Equalities Committee (one of the government committees specifically formed to look at diversity and inclusion) has prepared an interesting report. The report finds that, despite age discrimination being unlawful since 2006, it is still rife. In particular, the committee has found that older workers are much less likely to be recruited and more likely to be selected for redundancy than their younger counterparts.

The reports sets out that, in many cases, it remains an assumption that older workers were just ‘waiting to retire’, did not work as hard and were not as willing to pick up new skills. As a result of the report, many are suggesting that the government needs to do more to try to combat stereotypes about older workers.

We must wait to see if any action is taken as a result of the report, but for now it is important to remember that you must treat people equally, regardless of their age.

There are some limited situations in which you can take age into consideration in a recruitment decision. For example, this could be because, an applicant is too young to do a job due to legal restrictions relating to health and safety. However, take care if you are using age as a factor in your decision to recruit someone. Always be sure that there is a real reason, rather than just an assumption about what someone of a certain age can or cannot do.


Balancing work and childcare

Even though it is increasingly common for men and women to share childcare responsibilities, the reality is that more women than men take on the primary caring role. If it becomes difficult for them to balance childcare with work, what are your responsibilities as an employer? This was answered in the case of Bradley v London School of English and Foreign Languages Ltd [2018].

The employee was a teacher who was required to be at work at 8.45am to complete some initial tasks before teaching started at 9.00am. She had a young child, who she needed to take to school, so she asked if she could start work at 9.30am. This was refused because classes would have to be delayed. There were a series of exchanges about her hours, and she was late on a number of occasions. Eventually she claimed that the attitude to her was indirect sex discrimination.

The Employment Tribunal dismissed the claim, ruling that starting work at 8.45am was not particularly unusual or difficult. However, the Employment Appeal Tribunal has referred the case back to the Tribunal.

To show that there has not been indirect discrimination, there is a need to show that a provision, criterion or practice has been applied to all (the need to be at work at 8.45am), it is more difficult for a group with a particular protected characteristic (in this case, women), it is to their detriment and it is not a ‘proportionate means of achieving a legitimate aim’. The EAT has asked the Tribunal to look again at the balance of needs between the business and the employee to decide if the approach really is justifiable (I.e. a ‘proportionate means of achieving a legitimate aim’).


Be clear if you are dismissing an employee

In any argument, sometimes tempers become raised and people say things they do not really mean. This can also happen between employer and employee. If the nature of what has been said suggests that the employment might be terminated, you must always clarify when things have calmed down.

In Jones v Fly Light Air Sports Limited [2018] , the employee worked as a Flying Instructor. A row broke out with his line manager, which was primarily about the servicing of the aeroplanes. The row developed, and included a cup of tea being thrown. Allegedly, the line manager said to the employee ‘I don’t want you flying in my aircraft. Pack your bags and leave.’

The employee left and did not return to work. Subsequently the employer did arrange a disciplinary hearing, but he did not attend. He argued that he had been dismissed when he had been told to pack his bags and leave, and that this was an unfair dismissal.

He was successful in his claim. It was reasonable for him to interpret what was said as a dismissal, and no attempt was made to clarify the situation. As no fair procedure was followed, this was an unfair dismissal.


Always address a grievance

It might seem as if an employee is forever moaning (and some employees do moan a lot), but if an employee raises a formal grievance, you must address it fully and promptly.

In Rawlinson v Catch 22 Multi Academies Trust Ltd [2018] the employee had worked for some time for the organisation as an IT Manager. The job had grown over time, and he raised a grievance that the changed nature of his job meant that he was significantly underpaid in comparison to other colleagues. He got no response, raised the grievance again and still got no response.

He also asked if he could have access to a company van because he was required to move company equipment between locations and was not insured to do this in his personal car. This request was rejected. He saw this as the last straw in the way that he was being treated and resigned and claimed constructive dismissal. He was successful.

In this case, none of the individual situations were sufficiently serious for them to amount to a breach of contract. However, the overall pattern of the way that he was treated was sufficiently serious.


Zero hours workers must still be treated fairly

One of the benefits of using zero hours contracts is the flexibility that they bring, and that you are not committed to offering a set amount of work. However, complexities can arise if the employment status of the individuals concerned is not clear. This can lead to confusion about the requirement to go through the company disciplinary procedure or to make an individual redundant if they are no longer required.

In Obi v Rice Shack Ltd [2018] the individual worked on a zero hour contract in a restaurant, typically working 15.5 hours per week. There was an altercation at work and she was suspended in March 2016. There was no disciplinary hearing, and in May 2016 she raised a grievance asking what was happening to her employment. There was a hearing in June 2016 which did not resolve anything, and in August 2016 she got a new job working in a call centre.

Then, in December 2016, she was contacted by the restaurant asking if she would work some shifts. She refused them, because she no longer wanted to work for the employer, but she also claimed unlawful deduction from wages for the period that she had been suspended without pay. Her claim was successful. The employer had no contractual right to suspend her without pay, and therefore there had been an unlawful deduction from wages.By offering her a further shift in December the employer was acting as if she was still working for them. This supported her argument that she had been suspended without pay, because she had received no work and no pay during this time.


A Final Word – Legal Training

‘Upskilling’ has been the word of the month for a number of our clients, which means we have been busy preparing and delivering bespoke training sessions for HR teams and managers. As you will be aware, if you are a regular reader of our bulletins - employment law is continually changing, and it is important that every business keeps abreast of the key developments. In many cases the changes might affect the way you should deal with the day-to-day HR issues you might be facing, such as sickness absence or disciplinary processes.

In July, we delivered a number of half or full day training sessions for individual clients. Each bespoke session included interactive workshops tailored to that particular client’s industry and any development areas that we or they had identified, as well as a more in-depth legal update session (with practical tips for them to take away).

We regularly deliver training sessions for senior managers, HR teams or other groups. For example, earlier in the year we trained employee representatives in a works council (which a client had recently set up) on their legal obligations and responsibilities.

In most businesses, it is the individual managers who will be investigating disciplinary allegations and making the decisions on grievances or disciplinaries (albeit with guidance from HR), but often they have received little or no direct training on these duties. It will also be the managers who will be on the witness stand if a case ends up at a Tribunal hearing, so ‘upskilling’ them can save a business a lot of time and expense in the long run, demonstrate a commitment to their personal development and allow HR teams to focus on the proactive people issues which add real value.

If you do feel that you want some training on any specific issue for your manager, or any general update training session for your HR team, please give us a call and we can discuss your requirements.